Nasby v. Wickham ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 BRENDAN NASBY, Case No. 3:22-cv-00146-MMD-CLB 7 Plaintiff, ORDER v. 8 HAROLD WICKHAM, et al., 9 Defendants. 10 11 Pro se Plaintiff Brendan Nasby submitted a complaint for violation of his civil rights 12 under 42 U.S.C. § 1983. (ECF No. 5.) Before the Court is the Report and 13 Recommendation (“R&R”) of United States Magistrate Judge Carla L. Baldwin 14 recommending that the Court grant Defendants’ motion for summary judgment (ECF No. 15 26 (“Motion”)) because Nasby has failed to provide evidence or meet the threshold 16 requirement for bringing a cause of action for denial of meaningful access to the courts. 17 (ECF No. 32.) Nasby did not file an opposition to the Motion, even though he was granted 18 two extensions of time to do so (ECF Nos. 30, 31.) Objections to the R&R were due 19 December 1, 2023. (See id.) To date, Nasby has not objected to the R&R. The Court thus 20 adopts the R&R in full. 21 Because there was no objection, the Court need not conduct de novo review, and 22 is satisfied that Judge Baldwin did not clearly err. See United States v. Reyna-Tapia, 328 23 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 24 recommendations is required if, but only if, one or both parties file objections to the 25 findings and recommendations.”) (emphasis in original). A party is entitled to summary 26 judgment as a matter of law when “the movant shows that there is no genuine dispute as 27 to any material fact.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 1 In the R&R, Judge Baldwin recommends that the Court grant Defendants’ Motion 2 || because Defendants have met their initial burden of showing that Nasby has not suffered 3 || an actual injury, and Nasby fails to produce any evidence to meet the actual injury 4 || threshold for establishing an access to the courts claim. (ECF No. 32 at 7-9.) See Alvarez 5 || v. Hill, 518 F.3d 1152, 1155 (9th Cir. 2008) (describing the actual injury standard for 6 || access to courts claims); In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) 7 || (describing summary judgment burdens). Judge Baldwin notes that Nasby’s premise that 8 || he would have succeeded in post-conviction relief petitions had the Nevada Department 9 || of Corrections sent out his mail on a particular day is speculative and unsupported by 10 || evidence. (ECF No. 32 at 7-8.) She further notes that Nasby previously filed a civil rights 11 || action asserting an access to courts claim, and the Ninth Circuit Court of Appeals found 12 || that Nasby had not suffered an actual injury and that none of his underlying habeas claims 13 || were viable. (/d. at 8.) In addition, Judge Baldwin notes that Nasby cannot show that 14 || Defendants’ mail regulations are not reasonably related to legitimate penological 15 || interests. (/d.) See Lewis v. Casey, 518 U.S. 343, 346 (1996). Even viewing all facts and 16 || drawing all inferences in the light most favorable to Nasby, the Court thus finds that 17 || Defendants are entitled to summary judgment. 18 It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF 19 || No. 32) is accepted and adopted in full. 20 It is further ordered that Defendants’ motion for summary judgment (ECF No. 26) 21 || is granted. 22 The Clerk of Court is directed to enter judgment accordingly and close this case. 23 DATED THIS 7" Day of December 2023. 25 □□□□□□□□□□□□□□□□□□□□□□□□□ 26 CHIEF UNITED STATES DISTRICT JUDGE 27 28